Monday, March 01, 2010

Bill will create Mining Advisory Council to oversee state agencies

House Bill 2617 is becoming more like a mining omnibus with the addition of amendments that create a Mining Advisory Council (ARS 41-4601) to oversee state agency rules, policies, and budgets. The list of provisions in the bill already covered lots of ground before the latest changes.

Provisions (prepared by Legislative staff):

·Removes the requirement of three additional years experience in mining, smelting or open pit mining as a qualification of the Inspector.

·Broadens the qualifications of the Inspector to having at least four years experience in any type of mining rather than underground mining.

·Allows an agency to charge a person a fee during any fiscal year in which the agency’s budget is less than the amount budgeted for that agency in FY 2009-10.

·Allows a person to request an agency to expedite an application review by requesting that the agency use the services of an outside consultant and agreeing to pay the agency the consultant’s services as provided by statute.

·Requires the Council to accept early review petitions of a proposed rule pursuant to current law.

·Establishes a mandatory 60-day comment period for persons to provide written or oral comments, on proposed rules to the Council.

·Prohibits an agency from adopting requirements that exceed or conflict with relevant federal requirements, unless authorized by law.

·Allows an agency to adopt federal rules pursuant to current law or to adopt rules to reflect local conditions as long as the rules are consistent with and do not exceed federal requirements, except if authorized by law.

·Requires the Council to accept early review if the early petition is filed by a person adversely impacted by the proposed rule.

·Extends the date an agency issuing licenses must have final rules in place establishing a timeframe to deny or grant each type of license that it issues to December 31, 2011.

·Changes the penalty fee for an agency failing to comply with the overall timeframe to 5% of the total fees received by the agency for reviewing.

·Changes the compliance period timeframe to begin on September 1, 2011 for agencies that have established timeframes before July 1, 2011 and by September 1st of each year thereafter for all agencies that issue licenses.

·Allows groundwater withdrawn as part of a mitigation of a nonhazardous release or in connection with an aquifer protection permit to be used to fill or refill a body of water.

·Exempts treatment and reinjection of groundwater into the aquifer by a reinjection well or other means that occur as part of a mitigation activity pursuant to current law or in connection with an aquifer protection permit issues to a metal mining facility.

·Includes all withdrawals and uses of groundwater related to a mining operation, as well as compliance with applicable environmental controls, in the definition of mineral extraction and processing use of groundwater for the purposes of groundwater statutes.

·Allows groundwater to be transported away from a groundwater basin in connection with a remedial action pursuant to CERCLA or current statute as part of mitigation activities or in connection with an aquifer protection permit issues to a metal mining facility.

·Requires the Director of ADWR to approve or deny the drilling of a well within 45 days after receipt of the notice of intention to drill if the proposed well is located within one mile of a mitigation of nonhazardous releases site.

·Stipulates that persons are not required to file a certificate of disclosure with ADEQ in proceedings in which ADEQ or the state of Arizona is or was a party.

·Specifies that point source discharges to navigable waters are not considered to be discharging facilities.

·Requires the Director of ADEQ to confirm that a violation occurs at the applicable point of compliance before determining whether to revoke a general permit.

·Clarifies that the following changes be made regarding mitigation activities as they pertain to applicability of requirements under ADWR:

ØAny person conducting mitigation activities must obtain and comply with applicable permits, approvals or other authorizations required by ADWR.

ØAuthorizes the Director of ADWR to waive it’s applicable permits, approvals or authorizations if it is determined that the permits, approval or other authorization unreasonably limits the completion of mitigation activities as long as the waiver does not conflict with the statutory intent of the permit, approval or other authorization.

ØADWR must expedite the processing and issuance of permits, approvals or authorizations to facilitate the prompt conduct of mitigation activities.

ØIf ADWR fails to issue or deny a permit within 120 days from the receipt of a completed application for a permit, approval or authorization, ADWR may authorize the party conducting the mitigation activities to proceed with that action without any penalties for failure to obtain a permit, approval or authorization and is still required to comply with the substantive requirements of such permit, approval or authorization.

ØThe person conducting the mitigation activities who uses groundwater withdrawn in an active management area must continue to pay the groundwater withdrawal fee for the groundwater the person withdrew and used or received and used.

·Mandates the Director of ADEQ and the Director of ADWR to coordinate efforts to expedite mitigation activities, including obtaining information pertinent to mitigation investigations and beneficial use of water withdrawn for remediation or mitigation purposes.

·Authorizes the Director of ADWR to waive any regulatory requirement adopted pursuant to water law with respect to a site or portion of a site as part of mitigation order issues or other mitigation activities undertaken for that site or portion of that site if the regulatory requirement conflicts with the implementation of the mitigation activities, provided that the waiver does not result in adverse impacts to other land and water users.